Case KG Doc 379 Filed 01/07/14 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

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1 Case KG Doc 379 Filed 01/07/14 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 ) FISKER AUTOMOTIVE HOLDINGS, INC., et al., 1 ) Case No (KG) ) Debtors. ) (Jointly Administered) ) ) Related to Docket No. 283 NOTICE OF FILING OF REVISED PLAN OBJECTION CHART RELATED TO DEBTORS FIRST AMENDED JOINT PLAN OF LIQUIDATION PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE PLEASE TAKE NOTICE that on January 1, 2014, the above-captioned debtors (collectively, the Debtors ) filed their Debtors Memorandum of Law and Omnibus Reply in Support of (I) Confirmation of the Debtors' Joint Plan of Liquidation Pursuant to Chapter 11 of the Bankruptcy Code and (II) Adequacy of the Debtors Disclosure Statement [Docket No. 283] (the Confirmation Brief ) in connection with the Debtors First Amended Joint Plan of Liquidation Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 284] (the Plan ). Attached to the Confirmation Brief as Exhibit A was a Plan Objection Chart which summarized objections to the Plan. PLEASE TAKE FURTHER NOTICE that attached hereto as Exhibit A is a revised Plan Objection Chart indicating the updated status of objections to the Plan. 1 The Debtors, together with the last four digits of each Debtor s federal tax identification number, are: Fisker Automotive Holdings, Inc. (9678); and Fisker Automotive, Inc. (9075). For the purpose of these chapter 11 cases, the service address for the Debtors is: 3080 Airway Avenue, Costa Mesa, California DOCS_DE:

2 Case KG Doc 379 Filed 01/07/14 Page 2 of 2 Dated: January 7, 2014 /s/ Peter J. Keane Wilmington, Delaware Laura Davis Jones (DE Bar No. 2436) James E. O Neill (DE Bar No. 4042) Peter J. Keane (DE Bar No. 5503) PACHULSKI STANG ZIEHL & JONES LLP 919 North Market Street, 17th Floor P.O. Box 8705 Wilmington, Delaware (Courier 19801) Telephone: (302) Facsimile: (302) ljones@pszjlaw.com joneill@pszjlaw.com pkeane@pszjlaw.com - and - James H.M. Sprayregen, P.C. (admitted pro hac vice) Anup Sathy, P.C. (admitted pro hac vice) Ryan Preston Dahl (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois Telephone: (312) Facsimile: (312) james.sprayregen@kirkland.com anup.sathy@kirkland.com ryan.dahl@kirkland.com Proposed Attorneys for the Debtors and Debtors in Possession DOCS_DE:

3 Case KG Doc Filed 01/07/14 Page 1 of 8 EXHIBIT A Revised Plan Objection Chart DOCS_DE:

4 Case KG Doc Filed 01/07/14 Page 2 of 8 In re Fisker Automotive Holdings, Inc., et al. Plan Objection Chart 1 January 7, Internal Revenue Service [DN 188] ( IRS Objection ) The Plan s third party release, exculpation, injunction, and limitation of liability. The Plan must provide for preservation of setoff and recoupment rights. The Plan s release, exculpation, injunction, and limitation of liability provisions are narrowly tailored, appropriate, and consensual and are fully justified in light of the circumstances of these chapter 11 cases. See Memorandum at II.C. The parties are negotiating an agreed resolution to this objection. 2. Kongsberg Automotive, Inc. [DN 211] 3. Diversified Machines, Inc. [DN 215] 4. Bosal Industries- Georgia, Inc. [DN 221] The Plan must provide for treatment of Objector s claims that complies with section 1129(a)(9). The Plan must provide for adequate interest on Objector s administrative and priority claims. If Objector s contracts will be assumed, they must all be assumed and the full cure amount must be paid at closing. If Objector s contracts will be rejected, they must all be rejected and Objector should be exempt from Article V.D of the Plan. Objector should be exempt from Article V.D of the Plan. Goods ordered by Debtors but never paid for and in Objector s possession may not be disposed of by the Plan. The Objector s claims will be treated pursuant to section 1129(a)(9) and Objector will not be subject to Article II.D of the Plan. See Memorandum at I.J. Unsecured creditors are not entitled to interest. This objection has been resolved. Resolved This objection has been resolved. The parties are negotiating a potential resolution to this objection. Resolved 1 The Debtors reserve all rights to modify this Exhibit A and the Confirmation Order pending further discussions with the objecting parties. KE

5 5. WWG Canyon Corporate Owner, LLC [DN 229] ( WWG Objection ) 6. WARN Plaintiffs [DN 248] ( WARN Objection ) 7. Howard Ternes Packaging Company, Inc. [DN 249] 8. Benteler Aluminum Systems DK A/S [DN 258] Case KG Doc Filed 01/07/14 Page 3 of 8 Asserted possessory liens on tooling held by Objector may not be released by the Plan and the Plan may not enjoin enforcement of such liens. The Plan must provide for full payment of Objector s administrative expense claims. information regarding Objectors asserted priority claims. The Plan fails to provide for cash payment for non-accepting priority claimants on the Effective Date. Asserted possessory liens on car parts held by Objector may not be released by the Plan. Tooling and other equipment held by Objector is not property of the Debtors and cannot be disposed of by the Plan. Asserted possessory liens on tooling held by Objector may not be released by the Plan and Objector may not be enjoined from enforcing those liens. Notice of rejection of Objectors contracts was not adequate. The Objector s claims will be treated pursuant to section 1129(a)(9) and Objector will not be subject to Article II.D of the Plan. See Memorandum at I.J. The Disclosure Statement contains adequate information regarding Objectors asserted priority claims. See Disclosure Statement, Art. IV.A.3 The Plan has adequate funding to meet all priority obligations; the WARN Plaintiffs are not entitled to priority status under the Bankruptcy Code. See Memorandum at II.B. Sale Order. To the extent the property at issue is not the Debtors property, the Plan does not purport to dispose of that property. The Plan s lien release provision is appropriate under applicable law. The notice given to Objector was appropriate in light of the circumstances of these chapter 11 cases. Resolved Objector should not be subject to Article V.D of the Plan. The Plan provides insufficient time to file a proof of claim with an earlier deadline than provided as the bar date. The Plan is unclear as to the release of secured claimants liens if an objection to a secured claim is pending as of the Effective Date. The provisions of Article V.D of the Plan are appropriate. This objection is moot; the bar date set by order of the Court will control. This objection is moot; to the extent Objector s asserted possessory lien is valid, it will not be released under the Plan. 2

6 9. Atlas Capital Management, LP [DN 259] ( Atlas Objection ) Case KG Doc Filed 01/07/14 Page 4 of 8 information regarding the justification for the Debtor and Third Party Releases. information regarding the basis for defining Section 510(b) Claims. information regarding the scope of Third Party Releases, Injunction and Exculpation, and ballot and solicitation procedures with respect to creditors eligible to vote who choose not to vote. information regarding the failure to provide an option to withdraw from the Third Party Release. information regarding the basis for extending stays and injunctions extant on the Confirmation Date beyond the Effective Date. information regarding the failure to provide for the preservation of documents relevant to Objector s lawsuit. information regarding whether creditors will be permitted to pursue claims against the Debtors to the extent of available directors and officers liability insurance. The Debtor and third party releases are narrowly tailored, appropriate, and consensual and are fully justified in light of the circumstances of these chapter 11 cases. See Memorandum at The Disclosure Statement and the Plan appropriately define Section 510(b) Claims. See Memorandum at III.C. The Disclosure Statement contains adequate information regarding the Third Party Releases, Injunction and Exculpation, and ballot and solicitation procedures with respect to creditors eligible to vote who choose not to vote. See Memorandum at III.C. The Ballots for the Plan provide creditors with the ability to opt out of the Third Party Release by not voting to accept the Plan. See Memorandum at III.C. The extension of the automatic stay and other injunctions is expressly limited to the maximum extent permitted by law. See Memorandum at III.C. The Asset Purchase Agreement sufficiently provides for the preservation of the Debtors books and records. See Memorandum at III.C. The Disclosure Statement contains adequate information as to whether creditors will be permitted to pursue claims against the Debtors to the extent of insurance coverage in that the Plan enjoins any such action. See Memorandum at III.C. 3

7 Case KG Doc Filed 01/07/14 Page 5 of 8 The Debtor Release is inappropriate. The Debtor Release is fully justified in light of the circumstances of these The Court lacks jurisdiction to enjoin Objector s lawsuit against non-debtor parties. The Plan may not bind creditors who do not vote to the Third Party Release. The Injunction cannot enjoin actions against non-debtors or limit Objector s ability to request and obtain relevant discovery. The release and injunction provisions should provide a carve out for gross negligence. The Exculpation may not exculpate non- Debtors for prepetition conduct. The extension of stays and injunctions pending as of the Confirmation Date is inappropriate. The Plan must include a requirement to preserve the Debtors books and records. The Plan s injunction provision is appropriate in light of the circumstances of these chapter 11 cases and within the Court s jurisdiction. See Memorandum at II.A. The Plan s release provisions are appropriate in light of the circumstances of these chapter 11 cases. See Memorandum at II.A. The Plan s injunction provision is appropriate in light of the circumstances of these chapter 11 cases. See Memorandum at II.A. The Plan s release and injunction provisions are appropriate in light of the circumstances of these chapter 11 cases. See Memorandum at II.A. The Plan s exculpation provision is appropriate in light of the circumstances of these chapter 11 cases. See Memorandum at II.A. The extension of the automatic stay and other injunctions is expressly limited to the maximum extent permitted by law and is within the Court s authority under the Bankruptcy Code. See Memorandum at III.C. The Purchase Agreement sufficiently provides for the preservation of the Debtors books and records. See Memorandum at II.A. 4

8 10. Citibank, N.A. [DN 255] ( Citibank Objection ) Case KG Doc Filed 01/07/14 Page 6 of 8 The Plan should not preclude Objector from proceeding with claims against the Debtors to the extent of available directors and officers insurance coverage. Asserted possessory liens on Debtors bank account may not be released and enforcement thereof may not be enjoined by the Plan. The Plan may not alter Objector s set off rights. The Plan s injunction provision is appropriate in light of the circumstances of these chapter 11 cases. See Memorandum at II.A. The Plan s lien release provision is appropriate under applicable law. The Plan s provisions regarding set off rights are appropriate under applicable law. The Plan may not prevent Objector from recovering postpetition interest. The Plan does not prevent Objector from recovering postpetition interest to the extent it is entitled under applicable law. The Plan may not close the Claims Register before the bar date. This objection is moot; the bar date set by order of the Court will control. Objector should receive treatment provided by section 1129(a)(9) and not be subject to Article II.D of the Plan. The Objector s claims will be treated pursuant to section 1129(a)(9) and Objector will not be subject to Article II.D of the Plan. See Memorandum at I.J. 11. Delaware Economic Development Authority [DN 257] ( DEDA Objection ) information regarding the Wind Down and Wind Down Reserve. information regarding Hybrid s obligation to pay Delaware Facility Carrying Costs. The Disclosure Statement contains adequate information regarding Hybrid s obligation to pay the Delaware Facility Carrying Costs. See Disclosure Statement, Art. VI.C.10 & Exhibit C 1.9. Resolved other than with respect to treatment of the Delaware Facility Carrying Costs. The Plan may not be feasible in light of asserted ambiguities regarding Delaware Facility Carrying Costs. 12. Cisco Systems Capital Corporation [DN 261] ( Cisco Objection ) Objector should receive treatment provided by section 1129(a)(9) and not be subject to Article II.D of the Plan. Resolved The Plan may not provide for assumption and assignment of Objector s lease on terms that vary from those sought in connection with the Sale and approved by the Court. 5

9 13. Official Committee of Unsecured Creditors [DN 264] ( Committee Objection ) Case KG Doc Filed 01/07/14 Page 7 of 8 The Plan is not feasible once the proposed sale is denied. The Plan has not been proposed in good faith in that the Debtors sale process was flawed. The Plan has not been proposed in good faith in that it provides releases for the Released Parties. The Plan has not been proposed in good faith in that the Debtors and not the Committee will select the Liquidator. The Plan has not been proposed in good faith in that it improperly conditions the creation of the Unsecured Creditor Recovery Pool on a majority of unsecured claimants voting to accept the Plan. The Plan does not satisfy section 1129(a)(7) in that unsecured creditors would have received more in a chapter 7 liquidation because Hybrid would not have liens on Avoidance Actions or superpriority administrative claims and would not be permitted to credit bid and estate claims would not be released. The Plan does not satisfy section 1129(a)(10) if Hybrid makes up the only class that votes to accept the Plan because Hybrid should be deemed an insider. The Plan violates section 1126(d) by providing that if no holder in a class votes, the class will be deemed to accept. The Plan violates section 1129(b)(1) in that it is not fair and equitable. The Sale should be approved, and the Debtors estates will have sufficient value to meet their obligations under the Plan. See Memorandum at I.L. The Debtors sale process was undertaken through an arm s length transaction approved by their independent director, and the Plan has been proposed in good faith. See Memorandum at I.D. The Plan s release provisions are appropriate in light of the circumstances of these chapter 11 cases, and the Plan has been proposed in good faith. See Memorandum at I.D, II.C. The Debtors control over the selection of the Liquidator is permissible under the Bankruptcy Code, and the Plan has been proposed in good faith. The terms of the Unsecured Creditor Recovery Pool are permissible under the Bankruptcy Code and appropriate in light of the circumstances of these chapter 11 cases, and the Plan has been proposed in good faith. See Memorandum at I.D. The Plan satisfies section 1129(a)(7) as unsecured creditors are better off under the Plan than they would be in a chapter 7 liquidation. See Memorandum at I.H. Hybrid is not an insider, and its acceptance of the Plan satisfies section 1129(a)(10). See Memorandum at I.K. This objection is moot; every eligible class had at least one vote cast. The Plan complies with section 1126(d). This objection does not appear to allege any violation any unfair discrimination or treatment that is not fair and equitable. Regardless, the Plan complies with the requirements of section 1129(b)(1). See Memorandum at I.Q. 6

10 Case KG Doc Filed 01/07/14 Page 8 of 8 information regarding various prepetition events leading to these chapter 11 cases. information regarding potential sources of recovery for unsecured creditors. information regarding the Debtors postemergence business model. The Disclosure Statement contains adequate information on these topics. See Memorandum at III.A. The Disclosure Statement contains adequate information regarding all potential sources of recovery for unsecured creditors. The Disclosure Statement contains adequate information regarding the Debtors post-emergence business model by attaching the Plan and the Asset Purchase Agreement. See Memorandum at III.A. 7